This blog takes an interest in issues associated with Freedom of Information (FOI) and privacy legislation in Australia. It also includes comment about open transparent and accountable government and related issues generally drawing on developments in Australia and overseas. Information contained on this site is general in nature and does not constitute legal
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Friday, March 30, 2007

Hmmm, well, it seems my scepticism, in an item posted earlier today, about the WA Government's claim concerning the benefits to flow from changing the role of the Information Commissioner in reviewing Freedom of Information determinations, is shared by.........the Acting Information Commissioner.

She is quoted today in The Australian as saying that the changes in the role of that office and the State Administrative Tribunal "would simply add a new layer of legalism that would delay FOI requests". The Attorney General suggests it's a self seeking comment by an obvious loser as a result of the changes and is critical of some aspects of the Commission's performance.

I suppose Australian readers have been on the edge of their seats regarding news of developments in the Hicks' case - or not, as the case may be.

Regardless, in the interest of transparency, all might be interested to know that the twelve Australian journalists in Guantanamo Bay to report the details, have had to get their information - wait for it - from Canberra.

Matthew Moore in his column on Thursday "What they won't tell you" was right in saying that a knock back on access to the results of surveys of public responses to the Federal Government's WorkChoice advertisements, was "creative". The Department of Employment and Workplace Relations deferred access to the documents until after they have been submitted to the Ministerial Committee on Government Communications ("sometime in late 2007").

That's creative use of a provision in the Federal Freedom of Information Act that enables an agency to defer giving access to a document prepared for presentation to Parliament or "for the purpose of being made available to a particular person or body, or with the intention that it should be so made available".

It's particularly creative in the light of the comment by the Minister's adviser, reported in Moore's article, that surveys of this kind are never submitted to the Committee.

Some of the state FOI acts (NSW for example) limit deferral of access to circumstances where a document has been prepared for submission to a particular person or body, but is yet to be submitted.

Update: in response to a question about this issue in the Senate yesterday, the Manager of Government Business, Senator Abetz said that while the response to the FOI application was a matter for the Department, what had been done was consistent with the "general policy adopted by all governments of all persuasions......that while a communication campaign is still active no campaign material, including strategy documents and research findings, are released publicly". He added that the FOI applicant hadn't appealed the decision, "undoubtedly (because) he fully understands the reason why and he had no ground to appeal".

Not only did the Government move on information privacy legislation (see item below), it also introduced legislation involving some significant and some minor technical changes to the Freedom of Information Act.Freedom of Information Amendment Bill 2007 and Explanatory MemorandaSignificant changes include the abolition of conclusive certificates. The power to issue a certificate has never been used in WA, but this step will put the state ahead of other jurisdictions where ministers (or in the Federal Government, agency heads) retain powers to certify documents exempt, with limited review available.

There is a major change to the review mechanisms, with WA moving away from the model that gave the Information Commissioner powers to determine whether a document was exempt from disclosure. In the new scheme, the Commissioner (now with a role in both FOI and privacy) will only have authority to seek to resolve FOI complaints by conciliation. The State Administrative Tribunal will have jurisdiction to determine the status of documents.

This shift comes at a time when some (including me) have been advocating the existing WA (and Queensland and Northern Territory) model of an Information Commissioner with determinative powers, as likely to provide more speedy recourse to independent review by aggrieved applicants than that provided by some tribunals.

The Bill creates a new exemption (and one new to Australian FOI legislation) that would protect matter, the disclosure of which is prohibited by the body of traditions, observances, and customs of Aboriginal people generally, or of an Aboriginal community or group.

An agency may refuse to deal with an access application that is substantially the same as one previously lodged by the same applicant, or "which is frivilous in nature" - that should leave plenty of room for difference of opinion.

Many of the minor and technical amendments seem useful improvements and should be picked up by other jurisdictions interested in improving the law.

From here on, one of the changes will require statutory review of the legislation and whether it is achieving its objectives every 5 years.

I'm not sure all of the above warrants the observation by the WA Attorney General (as reported in The Australian "State Bill to give more access") that the changes would make the scheme one of the most independent and accessible in the nation, and will lead to more public policy information being made available, but after all, he would say that wouldn't he?

Thursday, March 29, 2007

The Freedom of Information Award was shared between a group of reporters from the Times-Union of Albany New York, and Farmsubsidy.org, a Danish based website.

Here's what the judges had to say about the winners:

Secret Political Piggy Bank

"When the Times-Union set out to expose how New York legislators used secret slush funds called "member items" to fund pet projects, they hit a stone wall. The government initially gave up a heavily redacted database with funding amounts but no sponsoring legislators' names. So, the newspaper ended up suing the Assembly itself to force full disclosure of the financial records. In a lawsuit eventually joined by important media outlets across the state, the Albany paper was able to obtain records that showed how many lawmakers were funding suspect and sleazy deals through their secret funds. Among the findings: legislators underwrote pricey non-profits and no-show jobs for relatives, and supported the political organization of a state senator with a bribery conviction. There's nothing like holding the writers of the FOI laws accountable -- and this series did just that".

Farm Subsidies

"Nils Mulvad, a Danish investigative journalist, led a two-year effort to open archives all over Europe to expose the closely guarded secrets of farm subsidies. With help from journalist Brigitte Alfter and researcher Jack Thurston, records on subsidies were acquired from 17 of 25 of the European Union countries. The resulting information was put on a website and made available to reporters and others throughout the EU. It resulted in a number of important stories, including showing how millionaires were among the top recipients and how dairy subsidies were undermining farmers in the Third World. A truly important and groundbreaking effort that will pave the way for the opening of other European Union records to the benefit of journalists worldwide".

Finalists included:

The Cincinnati Enquirer with "Lead's Dangerous Legacy":

"In March 2006 the Ohio Supreme Court ordered the Cincinnati Department of Health make public its records on landlords who hadn't removed poisonous lead paint from their properties. The records showed that 300 homes and apartments were tainted. Since 2002 at least 570 kids had been poisoned and yet the department had done "little to make landlords clean up the properties."

The Atlanta Journal-Constitution with coverage of "The Center for Disease Control and Prevention"

"The Center - the world's premier public health agency-- is in turmoil and foundering. It is at risk from many of the same ills that lead to FEMA's disastrous performance after Hurricane Katrina, according to Young's reporting on the Atlanta-based agency."

The Australian Walkley Awards include an Investigative Journalism Award, won last year by Caroline Overington of the The Australian, for her series on the AWB Kickback Scandal.

The legislation will apply to public sector organisations in the handling of personal information and public and private sector organisations in the provision of a health service or the handling of health information.

It's fairly stock standard stuff along the lines of existing Federal, Victorian, NSW, Tasmanian and territory legislation with some improvements here and there. Its far more straightforward than some, and sensibly incorporates health matters, avoiding the crazy situation in NSW and Victoria with their separate health privacy acts.

Private sector organisations will still face the problem of the need to comply with the Federal Privacy and state privacy laws regarding health matters. And as both the Federal and NSW Governments have sent their privacy laws off for review by respective law reform commissions, it's not surprising that a WA Bill based on these models includes many provisions that have given rise to confusion, complexity and uncertainty in other jurisdictions.

As the legislation includes a two year transition, those Law Reform Commission reports will be on the table before the WA Act bites, so there will be plenty of time for further reflection.

But for one thing, the Kiwi can get to find out more than the Aussie about what political parties have on file about them.

According to this article posted on Stuff, the New Zealand Privacy Commissioner has confirmed that despite the fact that the Parliament and individual members are exempt from the Privacy Act, members of the public can request to see what is held about them on political party databases.

No such prospect in Australia. The Federal Privacy Act excludes a "registered political party" from the definition of an organisation covered by the Act and, in addition the political acts and practices of members of Parliament (and others) are covered by an exemption. This includes elections and other aspects of the political process.

There is no doubt that Australian political parties - like their New Zealand counterparts - have very sophisticated databases on voters. Apart from our name and address (the source of all those personally addressed letters at election time), this is likely to include other information about issues we may have raised with our local member, information about age and in some instances ethnicity. Who knows what else?

The difference is in New Zealand you apparently have a right to see what a political party holds and presumably the right to correct.

In Australia, no such right but at least an issue identified in the Australian Law Reform Commission Issues Paper (Chapter 5, paragraph 5.163 and following) as a question for consideration in its review of privacy legislation.

Tuesday, March 27, 2007

We haven't heard much about the NSW e-health project, particularly the two pilot schemes that have been underway in Sydney and the Hunter Valley over the last year or so.

Maybe here's why - The Australian ("Delays dog e-health record trials") reports on a speech by the Deputy Director General of the NSW Department of Health, and it's not a pretty picture or a happy story.

There have been problems with software that have made participation by some doctors impossible to date, and Professor McGrath admitted that sensitive information like HIV status, mental health, pregnancies etc. is not capable of being protected from access by any participants in the project, including allied health professionals.

Professor McGrath said that the Government's decision to adopt an opt out model for the pilots (contrary to the provisions of NSW privacy legislation), was justified because the opt in model was not affordable or practical.

Opt out numbers are low, but you have to wonder whether participants fully realise the extent of potential access to sensitive information.

The Commissioners responsible for the review of privacy legislation - Professor Les McCrimmon (Australian Law Reform Commission) and Professor Michael Tilbury (NSW Law Reform Commission), spoke at a Law Week seminar on Monday at Parliament House in Sydney.

The current stage in the ALRC review is further information gathering and discussion with interested parties around the country. Over 290 submissions were received in response to the publication of the Issues Papers in December. The Commission's website provides plenty of information.

The NSW Commission review shares some common ground with the ALRC, and it has undertaken on behalf of both initial examination of whether a statutory right to take action for a breach of privacy should be introduced.

The Commission is about to publish an issues paper on the subject. Professor Tilbury (and Commission Chairman Justice James Wood), said that the absence of such a right was a major gap in Australian law. It's clear they think this should be addressed by legislative change rather than left to the courts to decide if such a common law right exists.

The problem is how to define the right, including what needs protection and what remedy should be available.

The NSW Commission is yet to commence its consultation process on review of NSW privacy legislation. At this stage it plans to publish an issues paper on this aspect of its terms of reference in September.

The NSW Commission's webpage will no doubt eventually have some useful information about what they are doing, but at this stage almost a year after receiving its terms of reference, they are the sum total of what's available.

Monday, March 26, 2007

Heard the one about the minister who complained to the Australian Electoral Commission about a Sydney lawyer's Christmas card on the grounds it was a political advertisement that breached the Electoral Act? The Commission subsequently found it was a breach and told the lawyer to cease and desist or face legal action.

The problem was the apparently humourless minister was upset that it exhorted recipients to "tell John Howard what you want for Christmas" - peace, tolerance and understanding for example.

The Electoral Commission in finding that this was a breach of the Electoral Act sounds pretty humourless too.

The lawyer is challenging a Commission refusal of a Freedom of Information application seeking the details of who complained.

Like to be a fly on the wall on this one. I presume the Commission sat up and took notice of the complaint because it came from a minister, or at least the minister as a member of parliament. It might be hard to argue that the minister's identity in these circumstances is covered by an exemption provision in the Act.

Malcolm Fraser (Prime Minister 1975-1983), when asked of what achievement he was most proud, said Freedom of Information legislation, according to Jack Waterford, Editor at Large of the Canberra Times and the doyen of Australian journalists in use of the FOI Act.

Waterford in "A legacy the PM could recall fondly" in Monday's Canberra Times, reflects on what a John Howard, "on the way out of public life", might consider a suitable legacy to be remembered a decade from now.

Waterford suggests doing something about enforceable standards of conduct for Parliamentarians, a standing inquiry into good administration able to set its own references, and the establishment of formal external scrutiny of public administration in ministerial offices.

Nice try Jack but the odds against are very long.

How about something more modest for the Prime Minister. His name crops up frequently in FOI law as a result of a case in 1985 when, as leader of the Opposition he unsuccessfully sought access to some documents concerning the preparation of the budget. The resulting "Howard factors" are a testimony to old style thinking about accountability, but ever since, at least in the Federal arena, they continue to feature in public interest considerations favouring non disclosure. A couple even got the nod last year from two of the judges of the High Court in the McKinnon case. (The NSW Court of Appeal on the other hand thinks these sort of broad theoretical claims should not be given credence in the absence of evidence of harm to public administration).

Things like communications between senior public servants and ministers and documents concerning the development of policy always need to be protected; and candour and frankness will suffer, or public servants will not write things down if advice documents are disclosed.

Prime Minister Howard could ensure that long after he leaves office, legislation is in place that consigns this sort of clap trap to the dust bin of history. A fair start would be to act on the recommendations in a 1995 report from the Australian Law Reform Commission.

But then again from what you read John Howard probably wouldn't want he and Fraser to both appear in the record books as agreeing on anything, let alone that FOI was their legacy to remember.

Sunday, March 25, 2007

The NSW Labor Government, returned to office in Saturday's election, says it has a "mandate with a message" - that the people expect more and better of it.

The Premier made a point throughout the campaign that the Government was listening to the people, so the big question now is what did it hear, and what will it do in response? Secrecy in government came in for a mention in the editorials of both Sydney papers on election eve.

A democratic election is a central component of accountability, but a good government will be committed to transparency, responsibility and accountability throughout its term of office. The Premier is on the record with a "we support Freedom of Information" comment.

There will still be some independent and third party voices in both houses of Parliament who will remind the Premier of the importance of these principles.

Thursday, March 22, 2007

In "Pattern of FOI secrecy emerges", Chris Merritt in The Australian says that while the Federal Freedom of Information Act works reasonably well for those seeking information about themselves, its not working for those who seek information about policy and related matters.

The article quotes Rick Snell of the University of Tasmania as saying that last year's McKinnon decision in the High Court has effectively neutered the scheme as a method of gaining access to contentious information. In addition to conclusive certificates that can be used to block access, high charges are being used to deter journalists who often seek this type of information.

Coincidentally, the UK Lord Chancellor in a speech this week singled out journalists for comment regarding use of the FOI Act. He distinguished the public right to know, which he accepted, from the "media's right to tell", which he didn't.

In an otherwise positive speech about FOI and its likely significance as one of the government's greatest reforms - in this respect, the sort of speech no one can remember any Australian politician making - Lord Falconer says it's all about members of the public and their rights, not about the media and any special claim it might have for access and dissemination of information in the public interest.

Ben Fenton, in the (UK) Telegraph provides a spirited defence of the special role of journalists in digging out information that holds public authorities to account and informs as many people as possible: "If you set information free, as Lord Falconer apparently wants, only to roam in a tiny paddock rather than across the globe, what kind of freedom is that?"

Fenton points out that Lord Falconer's view could be a forerunner for deciding that the press has no special role in covering court cases, state occasions, or at Parliament.

Another commentator suggests that Lord Falconer seems to prefer FOI applicants who don't know much about the Act and what to ask for, rather than those who apply and know what they are talking about:

"Couldn't have people who actually know how to go digging for information making use of it now, could we?"

One of the issues being looked at by the Australian Law Reform Commission/NSW Law Reform Commission review of privacy laws, is the desirability of introducing a statutory right to sue for a breach of privacy.

It sounds as if the NSW Law Reform Commission which has prime carriage of this part of the review will make a positive recommendation. At this stage however virtually no information has been made available. To say that simply introducing such a right will "limit free speech" is a bit rich at this stage.

Any course of action should ensure that those in public life have less rights to privacy than the rest of us, but that doesn't mean the media have a right to barge in the bedroom or anywhere else.

Journalists after all currently claim to adhere to a code of conduct. Point 11 says "Respect private grief and personal privacy. Journalists have the right to resist compulsion to intrude".

Giving some definition to "personal privacy" and backing it up with a right to take action in certain circumstances doesn't seem to be a bad idea.

NSW privacy laws have included a statutory right to damages up to $40,000 where the Administrative Decisions Tribunal finds a public sector agency in breach of a privacy principle and the person affected can demonstrate loss or damage as a result. There have been only a handful of cases where an award of a few thousand dollars have been made since 2001.

As the headline indicates, the rest of the article outlines how hollow this claim is when compared to the Government's record, and yes, the quote from me taken from a previous post on this subject is accurate.

The Premier has announced a new "Social Policy - People First: Better Access to Government". The idea of new and improved web access to government information sounds great, but there's not a word here about content, in particular any intention to require greater pro active disclosure of information by government agencies.

Wednesday, March 21, 2007

If you work in a public sector body subject to the NSW Privacy and Personal Information Protection Act you might like to know that a lunchtime forum is scheduled next Monday in the Jubilee Room at Parliament House in Sydney. The Commissioner in charge of the NSW Law Reform Commission review of privacy legislation will outline the scope of the review and discuss relevant issues.

Tuesday, March 20, 2007

The NSW Government has refused to act on recommendations from the Ombudsman over the last decade calling for a review of the Freedom of Information Act and opposed a bill in the Legislative Council last year that would have required an independent review. The Premier told Parliament that the Act was under "review" on an ongoing basis, in any event.

What then will the Government make of observations by the Administrative Decisions Tribunal Appeal Panel this week about the unsatisfactory state of NSW laws that include secrecy provisions, and how they limit the proper working of the FOI Act.

"40 As noted above at [28] in the extract from the Appeal Panel’s reasons in the Law Society case, the Government of the day in 1988 promised the Parliament and the community of New South Wales that the secrecy provisions exemption would be reviewed. The Premier of the day committed the Government to ensuring that all legislation containing secrecy provisions would be assessed to ascertain whether it is appropriate to remove secrecy provisions from specific Acts. The Premier of that time failed to implement the promise, and no action has been taken since.

41 We repeat the concern previously expressed that active reliance by agencies on secrecy provisions in their statutes could mean that the FOI Act will cease to have any application to many parts of the New South Wales public service thus undermining the very purpose of that legislation. Secrecy provisions are a commonplace of agency statutes in New South Wales. The result is an unsatisfactory one".

As the Appeal Panel noted, there are lots of provisions in other acts that impose non disclosure obligations. The problem is that they come in all shapes and sizes. Many pre date the FOI Act. In this case the Appeal Panel found that a provision in an act that created an offence if information was disclosed, could be relied on to refuse access under FOI even though the provision said that no offence was committed if the public interest justified disclosure. It would have been a different matter if that provision permitted disclosure "with other lawful excuse".

The Appeal Panel commented that the exemption in the NSW Act concerning secrecy provisions in other acts, is wider than the similar exemption in the Federal and Victorian FOI Acts.

With only four days to go to the election, those words "how I will reform NSW laws to improve transparency and accountability" are still to pass the lips of the leaders of the major parties.

President O'Connor isn't the only one who thinks the present situation of our laws is unsatisfactory.

The National Security Archive at George Washington University announced that the US Air Force had been "awarded" this year's Rosemary Award for the worst Freedom of Information Act performance by a Federal agency.

The award is named after Rosemary Woods, President Nixon’s secretary who testified in 1974, that a backwards-leaning stretch while seated at her desk resulted in the “inadvertent” erasure of eighteen and a half minutes from the audio tape of a key Watergate conversation in the President’s White House office.

The Air Force, according to a US District Court finding last year, had failed miserably to meet FOI Act deadlines, had 139 broken links on its FOIA websites and had lost various records while processing requests.

A fax number for one Air Force component listed on the Air Force FOI website as the place to send requests was not a fax number at all - it was the phone number for a patient room in a base hospital at Wright Patterson Air Base in Ohio.

On a more positive note: The American Library Association's James Madison Award for those who "have championed, protected and promoted public access to information and the public's right to know", was awarded to Paul McMasters, the first Executive Director of The First Amendment Center and who was instrumental in establishing the annual FOI Day Conference.

While we don't have Australian equivalents, feel free to nominate an FOI champion or FOI laggard.

We could call our Rosemary, "The Alexander", after Alexander Downer, Australia's Foreign Minister, who vigorously claimed "we knew nothing" despite the fact that 35 separate messages were received by his Department alerting the Government to accusations that the Australian Wheat Board had paid bribes to Saddam Hussein's government, contrary to the UN sanctions.

Sunday, March 18, 2007

Just when we thought that standards in public life couldn't get much lower, along comes Senator SantoSantorowho had to tell the Prime Minister last week that he had "forgotten" to update the Register of Interests regarding 72 share trading transactions undertaken in his 15 months as Minister for the Ageing.

This was after he owned up to one failure to disclose last year and mistakenly said he had given any profit from that deal to a charity that turned out to be a not for profit lobby group. It's still up in the air whether any of the share trades involved companies engaged in the aged care sector.

No jokes here about ageing and the effect on your memory!

This is the latest in a string of scandals involving Federal Liberal Members of Parliament. Then there was Opposition frontbencher and the reference he gave a drug trafficker.

Would greater transparency be part of the answer to this sorry state of affairs?

In "Where to draw the line?" in yesterday's The Age, the experts tell us there is a clear correlation between low ethical standards, secrecy and corruption. To combat this we need leaders who set "tone at the top" and reinforce values and ethical standards, for example through a parliamentary standards commissioner, as well as freedom of information laws that provide access to documents in all but specified exceptional circumstances.

Registers of interests are required of members of parliament and are available for inspection by any member of the public who takes the trouble to go and look.

Elsewhere the internet plays a vital role in public access. For example, want to know about the interests of any member of the New Zealand Parliament? Simply look here.

Or, interested in disclosures by members of the British House of Commons? It's all here, including under Blair, information that his wife receives royalties from a book about being married to the Prime Minister, and under Brown, the fact that Blair's likely successor hasn't got a thing to declare.These web disclosures are summaries rather than the fine detail included in declarations lodged with the parliament. But in Canberra and the states we should be taking a leaf out of these books to require disclosure of interests to the world, not just those who show up and ask at the counter between 9 and 5 on weekdays.

The NSW Administrative Decisions Tribunal has made its first decision exercising powers to require disclosure of a document containing information otherwise found to be exempt under the Freedom of Information Act.

However this was no giant step forward for transparency and accountability. The purchase price was already in the public domain, the proposed sale had fallen through, and the Government has demolished the school buildings, meaning any future sale will be a completely different proposition.

Deputy President Handley decided not to exercise his discretion to disclose other exempt documents containing information about projected infrastructure and development costs, and government processes concerning the valuation of assets, as this could have adverse consequences for proper administration. This despite the fact that he said he was

"satisfied that there was a strong public interest in obtaining as much relevant information as possible concerning the operations of government in relation to the closure of (Beacon Hill High School) and the sale of the building lots".

Deputy President Handley ruled that the public interest is a relevant matter in deciding whether the discretion in favour of disclosure should be exercised. A submission from the Crown Solicitor's Office on behalf of the Department that the discretion might not apply in the case of Cabinet documents, was rejected.

A fuller account of the Retain Beacon Hill High School Committee's efforts to obtain information about the decision to close the school is contained in Matthew Moore's "What they won't tell you" column in the Sydney Morning Herald on Thursday.

Friday, March 16, 2007

According to this report in the Herald Sun the Victorian Upper House has passed a resolution that will require the Government to table documents where a majority of the House votes in favour.

The resolution passed 21 to 19 despite strong opposition from the Labor Government.

The model is based on one that has operated in NSW Legislative Council for some years. The NSW Government (unsuccessfully) went all the way to the High Court to try to resist disclosure, and last year NSW Crown Solicitor, Ian Knight famously decried as a "distortion" of our system of government.

Fancy, I wonder why another house of parliament isn't satisfied with what the Government says, and as the representative of the people, wants to have a look for itself? It comes down to ministerial credibility, and it's up to ministers to show us why they should be taken at their word.

Meanwhile back in Australia, its business as usual on the FOI front - we're tinkering.

This time it's the Australian Capital Territory Government. The Assembly this week passed changes to the Territory Freedom of Information Act. One of the changes broadens the definition of work in processing an application that can be taken into account in concluding that a request should be rejected on the grounds that it would involve substantial and unreasonable diversion of resources. The change would bring the ACT law into line with others but some critics have seen it as another device to head off complex applications.

Other changes include substituting "personal information" for "personal affairs" to bring the FOI Act privacy exemption into line with privacy legislation.

The most significant change is adding a new exemption for documents that concern international relations or security matters, which mirrors a similar provision in the Federal FOI Act. Again following the Federal model, the ACT legislation will allow for the issue of a conclusive certificate by a minister in connection with this exemption, subject only to limited review.

The Greens Dr. Foskey and Opposition Member Dunne were both highly critical. The Government somehow managed to claim that what it was doing was consistent with transparency and accountability, and justified the limited review on the basis of last year's High Court decision in the McKinnon case.

Federal Labor has made quite a fuss about the Government's use of conclusive certificates, and the broad general interpretation of powers to issue them and has promised to abolish them if elected to office.

The ACT Labor Government has shown no interest in any general review of conclusive certificates or anything else in the FOI Act. This amendment is another case of tinkering at the margin, by adding to the considerable armour already in the law to justify refusal of access to documents.

As suggested in a recent item here, Senator Mason and his colleagues in their report on the Human Services (Enhanced Serivce Delivery) Bill, said there were so many problems with the timing and limited detail provided that it all came down to one single recommendation - go back to the drawing board, and bring forward at a later time a comprehensive piece of legislation that would enable proper consideration by the Parliament.

The new Minister for Human Services, Senator Ellison, responded to the report within hours. His predecessors having emphasised the need for urgency to get the first bill passed, the Minister now says it's reasonable that both tranches of legislation be brought together to allow all interested parties to see the full detail of the proposal. He added, hopefully, that this would "help dispel some misconceptions".

The issue has finally become a very hot political potato. It could prove to be even more expensive than anticipated given the fact that the Government has been moving to let tenders which may now need some adjustment.

Thursday, March 15, 2007

Another transparency related topic that neither of the major political parties has mentioned in the NSW election campaign to date, is the issue of lobbyists and access to information about who they are, who they talk to, and what they talk about.

The Burke affair in Western Australia, and the tentacles that have reached to Canberra have put the issue on the agenda there. Both the Western Australian and Victorian Governments are in the process of considering a lobby registration scheme, in the latter case with pressure from The Greens and others.

The major parties in NSW don't appear to be interested, although not surprisingly it is a topic that The Greens, Australian Democrats and independent candidates are concerned about.

Statutory decisions are of course important, and should be made honestly, without bias, and on the basis of proper considerations. But what about lobbying of ministers, ministerial staff and public servants on other issues such as the expenditure of large amounts of public money, and even bigger decisions they make concerning economic, social and environmental matters where individual or sectoral interests stand to gain? Shouldn't we have clear rules about attempts to exercise influence over these decisions, and don't we have a right to know who speaks to who about what?

Radio National's "The National Interest" last Sunday discussed issues about reform and regulation of the lobbying industry. One of the guests, Duff Conacher of Canada's Democracy Watch, spoke about the Canadian Federal system which not only requires registration of lobbyists and continuous disclosure (on the web) of contacts with politicians and public servants, but bans ministers and senior public servants from any involvement in lobbying for 5 years after they leave office. The Federal Opposition has said it will introduce a register, but the Government has dismissed this as unnecessary.

It looks like both our major NSW political parties prefer to leave a blank space rather than a commitment to reform of lobbying activity as the starting point for their time in office come 24 March.

Monday, March 12, 2007

Those words "how I plan to improve transparency and accountability in NSW" are still to pass the Premier's lips in the NSW election campaign. The list of achievements and plans makes no mention of reform in this area.

Well, thats not quite right, he did make one commitment last year: the Premier told a Parliamentary Committee on 28 August 2006

"..the administration continues to review the operation of the (FOI) Act on an ongoing basis. Following that, along with consultation with the Ombudsman, the Government has published additional guidance for agencies in relation to Cabinet confidentiality. The Government has also been working with the Ombudsman to update the manual for freedom of information practitioners. That manual will be available at the end of this year. It will be finalised by the end of this year and will be up to date"

There is not a scrap of evidence publicly available that the FOI Act has been under review - or at least anything approaching a comprehensive review - "on an ongoing basis". In fact the Government has not acted on recommendations from the NSW Ombudsman over the last decade calling for such a review. The Government voted against legislation introduced by Lee Rhiannon in the Legislative Council last year that would have required an independent review of the Act.

When we drew attention in January to the fact that the 12 year old manual-hopelessly out of date had not been replaced despite the Premier's commitment,we had a phone call from the Premier's Department to tell us the Manual was "at the printers". It looks as if it's still there and any statement of policy about the Government's approach to implementation of the FOI Act will remain safely on the printing press until after the election.

Opposition Leader, Peter Debnam has added nothing to a "Ministerial Accountability" policy released last year that would provide - wait for it - performance pay for ministers. Although the current Shadow Treasurer Peta Seaton spoke in Parliament last year about robust reform of disclosure laws, the Opposition haven't seen fit to give this a run, and Seaton is not seeking re-election.

However The Greens, the Australian Democrats and several prominent independent candidates have had something to say on the subject.

The Greens leader, Lee Rhiannon MLC, who has been a strong advocate for review and reform of the Freedom of Information Act, included the following in her policy priorities announced at the party launch yesterday:

"Open government directive and appoint an Information Commissioner.Require government agencies to actively and routinely publish government held information on the web, with limited exceptions, thus reducing the public's reliance on FOI requests. Establish an independent 'Information Commissioner', responsible for FOI and privacy. The Commissioner would facilitate a shift to open government, monitor compliance with FOI laws and assist individuals with complaints".

The Australian Democrats whose Arthur Chesterfield-Evans has also been prominent in efforts to improve FOI laws, and who is up for re-election, are committed to introduce new legislation for true open government, based on the New Zealand model, and to make FOI laws workable. See more details here

Sunday, March 11, 2007

There are media heavyweights such as Ben Bradlee of the Washington Post championing the public's right to know but at the regional and local level there are lots of strong advocates of why this issue matters to everyone in the community.

Sunshine week organisers have provided some great materials for use across the US including a great batch of cartoons. We particularly liked the one above which unfortunately has resonance just about everywhere.

Friday, March 09, 2007

Media reports of the three days of hearings on the first national access card bill by the Senate Finance and Public Administration Committee suggest that evidence of some witnesses and the response of some Committee members has added to Government concerns about the fate of the legislation in the Senate.

In "Access your areas", Mark Metherell provides a summary of some key points that emerged in the hearings in Sydney, Melbourne and Canberra over the last week. He reports that the Committee Chairman, Senator Mason, whose views will carry weight because of his expertise in this area, and others including Professor Allan Fels expressed doubts about the mandatory requirement for a photo on the face of the card, and about security and privacy of the 16million photo database. There seems to have been surprise that both the Australian Security and Intelligence Organisation and the Australian Federal Police both anticipate no great problems in accessing the database.

Metherell says that Senator Mason's hesitancy about aspects of the proposal "could be fuel for a public backlash like that which sank the proposed Australia Card in 1987".

The Senate Committee is to report next week and the Government hopes to have the Bill passed by the end of March.

The full transcript of the hearings is here, and the text of most of the 59 submissions received here.

"On the 25thanniversary of the date of assent of the Federal Freedom of Information Act, Attorney General Philip Ruddocktoday announced that the Government accepted that major reforms to the legislation and the way it has been implemented are long overdue. The Government would act to adopt allrecommendations made 12 years ago in a comprehensive report on the Act by the Australian Law Reform Commission, and regretted that it had taken so long to do so. Government policy, with immediate effect, would require disclosure of documentsunless real harm to government, commercial or privacy interests would result. Conclusive certificates that enable ministers anddepartmental heads to protect documents from disclosure will be abolished. An Information Commissioner will have authority and resources to make the Act work to achieve its objectiveof extending as far as possible the rights of all Australians to gain access to information held by the Government".

Just joking.......

The Federal FOI Act was signed into law on 9 March 1982 and commenced on 1 December that year, but the rest, unfortunately is pure fiction.

Thursday, March 08, 2007

While the Sydney Morning Herald reports on the handling of a high profile Freedom of Information application it made to Macquarie University, this decision (Howell v Macquarie University (2007) NSWADTAP10) by the Appeal Panel of the Administrative Decisions Tribunal canvases a number of separate issues concerning legal professional privilege and exemption claims for documents relating to the investigation of a complaint against a staff member, and disciplinary issues that arose.

The Appeal Panel upheld the University exemption claims, but has referred one document back for reconsideration, and asked the University to have another look at whether it should exercise its discretion to release the exempt documents.

In a decision not yet up on the web, Justice Simpson of the NSW Supreme Court in Independent Commission Against Corruption v Gerard Michael McGuirk (2007) NSWSC 147, overturned the Appeal Panel of the ADT on an issue about what an agency must do where it is in receipt of an application for documents concerning functions excluded from the operation of the FOI Act (Schedule 2). It restored the original decision made by the Tribunal

There are some strange aspects of the reasoning in the decision. Justice Simpson suggests that all that needs to be done is to simply tell the applicant that the documents sought are of a kind specified in Schedule 2. No formal determination under Section 24 of the Act is required. Justice Simpson says that such a decision would be still reviewable in the Tribunal, but seems to have missed the point that the FOI Act (Section 53) says the Tribunal has no powers of review unless a determination was made by the agency under Section 24 of the Act.

It must have made sense to Justice Simpson but mere mortals might scratch their head about this one.

The changes include the reaffirmation of the presumption in favour of disclosure unless harm can be demonstrated. Another - way behind the times from an Australian perspective - would establish an FOI Ombudsman to assist in the resolution of problems with agencies without the need to resort to litigation. The legislation has a long journey to navigate through the House and the Senate, and may or may not get a tick from the White House.

On the other side of the Atlantic, it's all hands on deck in the media and elsewhere to seek to head off proposed UK legislation that would significantly change the charging regime. There is also a private member's bill (Research Paper ) in the Parliament that removes the Houses of Parliament from the scope of the Act and exempts correspondence between MPs and public bodies.

Tuesday, March 06, 2007

The resignation of the Minister for Human Services Senator Campbell over the Burke affair means that the new minister will be the third in three months to hold the portfolio.

He/she will need to be a quick learner.

On the one hand, the Government says the Human Services (Enhanced Service Delivery) Bill must be passed urgently. On the other, senior public servants told the Senate Committee last Friday that the Department was still seeking advice on a wide range of issues concerning related legal issues such as access by intelligence services and the police to the 16million photographs in the proposed database.

Senate Committee hearings in Melbourne yesterday saw the Labor Party make it clear that it would scrap the scheme in its present form, if elected to office later this year, and some senators call for more time before the legislation is rushed through.

In the latest issue of Privacy Aware ( 1 March 2007 ), the Victorian Privacy Commission says that the combination of the mandatory information in the Government's section of the chip, and the open invitation to include other information in the cardholder's section will pose enormous privacy risks.

If you live in NSW, you might be surprised to learn that the state election campaign is "officially" underway as of yesterday, when writs for the election were issued.

Anne Davies in the Sydney Morning Herald ("Sleeper issues a policy free zone") provided a lengthy list of major issues that we should expect those vying for our votes to address, but instead the debate so far has been about simplistic solutions to short term problems.

Davies didn't include the issues that we focus on here: the words "how I will improve accountability and transparency" are yet to to be spoken. (Privacy is suitably quarantined with the NSW Law Reform Commission).

But what's this - the Burke affair has prompted an article today by Marian Wilkinson ("Shining a light on the lobbyists") about the secrecy surrounding the exercise of influence by lobbyists. She says our controls over lobbyists are either too loose or too secretive to be useful.

Wilkinson advocates a register, and publication on the web quarterly, of information about clients, how much they pay, which politicians and public servants they see and what they are talking about. Then for good measure, a ban on any gifts to a politician or bureaucrat, public disclosure of expensive wining and dining, prohibition of political donations by lobbyists, and a two year ban on former politicians, their senior staff and bureaucrats working for lobbyists. Drawing from the Burke experience, a criminal record would rule you out from registration.

Now that's transparency!

Wilkinson's column is about what we need in Canberra, but what do our party leaders in NSW say about all this less than three weeks out from election day?

The issue has been raised in NSW, particularly a year ago when the former Premier Bob Carr took up a lucrative position with Macquarie Bank, and the current Premier followed with an announcement about new rules for post separation employment.

What it reveals is that Parliament's Ethics Adviser sees all sorts of problems in making the Premier's idea work. He and the Committee clearly think that lots more needs to be done to improve ethics and accountability, and that the so far unadressed issue of post separation employment for senior public servants also needs to be considered.

The Committee laments that at the end of the day under the present system all we can do is hope that ministers and others "act ethically". Ahem...

The issue of greater transparency about lobbyists and what they do is a small part of the bigger picture of open and accountable government. Let's hope that issue gets a kick along in the next couple of weeks.

Sunday, March 04, 2007

Juicy as it is, I don't intend to delve into the fine detail of "L'affaire Burke", but it has a couple of interesting transparency angles.

For those not familiar with the matter - the former (1980's) Premier of Western Australia, Brian Burke, who presided over a corrupt government and went to jail over a couple of the minor matters that emerged, has been in business for years as a lobbyist in Perth. It's now come out, through secret phone taps and hearings by the WA Crime and Conduct Commission, that Burke corruptly influenced events on behalf of his clients.

Three Cabinet Ministers have been forced to resign in Perth since December. Last week, the Federal Government nailed Opposition Leader Kevin Rudd, over the fact that Rudd had met with Burke on three occasions. On Saturday Federal Human Services Minister, Ian Campbell appears to have been pushed overboard as a result of admitting to the Prime Minister that Burke had been a member of a group from the WA Turf Club that had met him last year. All this is a hot political potato and likely to remain on the boil for some time.

The transparency angle is whether we should expect to know who ministers meet in the course of their public functions.

It's not a generally accepted notion here in Australia. A Freedom of Information application might get you something. For example in 2003, Prime Minister Howard denied that he'd met anyone from Australia's main producer of ethanol prior to imposing a fuel excise on the product, but documents released under FOI showed that he had met Dick Honan, the company's Managing Director.

Then again, the Sydney Morning Herald last year drew a blank when it sought access to the NSW Premier's appointments diary, leading it to comment that on the basis of what the NSW Premier's Department claimed at the time, the Premier didn't really spend much time running the state.

In other countries the record is mixed. According to this article anyone in Florida can ask to see the local council general manager's appointments calendar, although in New York state, a request along these lines "can be greeted by a laugh or a snarl" from the town hall staff.

The Washington Post also ended up 'packing it in' in January this year after seeking access to Vice President Dick Cheney's log of visitors, although at the time it was winning a battle that had taken several years in the court system.

I imagine over the weekend there have been lots of phone calls about who in government has spoken to Brian Burke. Prime Minister Howard seems confident that no other minister apart from the selfless Senator Campbell has done so. What's happened in Western Australia will come out through the Crime and Conduct Commission. But given the fact that all other states and territories are governed by the Labor Party, and Mr. Burke's legendary status as a party powerbroker, who knows what ministers in all the other states may have had some contact with him?

If they'd received a call, what did they say when the receptionist had Brian Burke on the line and he'd asked to talk to the minister, a "maaaate"?

Thursday, March 01, 2007

The first of a number of bills concerning the National Access Card, the Human Services (Enhanced Service Delivery) Bill 2007, passed the Federal House of Representatives this week. Debate extended over three days with Government speakers largely supporting the legislation and Opposition speakers pointing out major problems, particularly privacy and fraud. The Government backbencher Stephen Ciobo, who has immersed himself in the detail, helpfully informed us all that he had "no doubt that the access card will, and can, be fraudulently reproduced in future".

Those interested in the fine detail can access the Hansardrecord of debate here. You will find the Government's second reading speech on pages 2-5 of the Hansard for 7 February, the Opposition Shadow Minister's response and other comments on pages 57-96 of the Hansard of 26 February, and the final stages of the debate on pages 24-61 of the Hansard of 27 February.

Those who want the short summary could do no better than read what Peter Andren, the Independent Member for Calare and widely recognised for his integrity, had to say (page 46 27 February):

"When considering this government's track record on manipulating truth or dispensing with it altogether and when thinking about attempts to silence dissent on government policy, and the attacks on the freedoms to protest against unethical or unscrupulous behaviour by both government and corporations, my gut feeling is to go looking for a rat in the bill".

Andren voted against the legislation. He said that there were many concerns and issues about privacy and security, and until all the relevant details about process and security were available, and identified weaknesses in the scheme addressed, it was premature to even consider the proposal before Parliament.

Andren concluded: "How can any member be required to support such a legislative shambles".

One of Andren's points was that the House of Representatives was being asked to consider part of the scheme before the complete framework had been laid on the table, and before Parliament's only investigation via the Senate Finance and Public Administration Committee had commenced, let alone reported. The Committee has three days of hearings scheduled in the next few days and is due to report on 15 March.

Juggling the Parliamentary process isn't the only Access Card challenge. This report in the Australian IT says that successful bidders for the systems integration and card issuance projects will be be asked to lodge financial guarantees of the order of $100million against project delays, breaches and failure to meet agreed service levels. Understandably some potential bidders (tenders are about to close) are seriously considering their degree of interest.

As detailed in this blog, the Tennessee Centre for Policy Research obtained, under Freedom of Information, details of Al Gore's energy bills for his home near Nashville. It turns out that the Gore household consumed electricity last year equivalent to 20 times the national average.

The fine print is that it all came from an energy provider that uses solar, wind power, and methane, and Gore has adopted a "carbon neutral" life.

But the story's doing the rounds under the inevitable heading - an inconvenient truth.

This latest word from the Sydney Morning Herald - "Secrets of the kitchen a recipe for ignorance" and "Hush hush on hygiene" - shows that even the NSW Ombudsman's Office, can interpret and apply the Freedom of Information Act in a timid fashion when it comes to "the public interest" and the right to know how food inspectors apply the law after inspecting restaurant kitchens.

I think this issue is now one for the food hygiene policy makers - its clear to the experts in many parts of the world that public disclosure has a major potential role in improving compliance with food handling standards. It's also clearly a public right to know issue.

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About Me

Peter Timmins is an Australian lawyer and consultant who works on FOI and privacy protection issues in Sydney, NSW. He has Arts and Laws (Honours) degrees
from the University of Sydney, and has been involved in the FOI field for 25 years.Peter is an experienced public speaker and commentator. See In the News and Testimonials, and Career Summary for more details on background and experience.